Legalizing Pot: The Cork Is Popping

Historian David Kyvig, an expert on the Prohibition era, has an apt analogy for describing the ratification of the 21st Amendment, which repealed alcohol prohibition. After a dozen years of contentious debate over the matter, a majority of states approved the amendment over a period of just nine months:

“It was as if someone were opening a bottle of champagne,” Kyvig wrote in his book Repealing National Prohibition. “At first the cork moved slowly and only under great pressure. But once it reached a certain point, the cork literally exploded out of the neck.” Northampton attorney Dick Evans is an expert on a different form of prohibition, that on marijuana, which the U.S. federal government made illegal in 1937. Over the past three decades, Evans has drafted several bills that would legalize marijuana in Massachusetts, making it subject to government oversight similar to the oversight of alcohol. While none of his bills received more than a polite hearing from the Legislature, Evans isn’t particularly bothered; politicians, he says, will never take the lead on such a controversial subject as drug reform. Instead, it’s the voting public that will lead the charge.

And it appears they are—most notably, the people of Washington and Colorado, who on Election Day voted to legalize recreational use of marijuana in their states. In Massachusetts, too, the cork has been moving steadily, beginning with the approval, by 63 percent of voters, of a 2008 ballot question that decriminalized possession of small amounts of marijuana. Last month, the cork inched forward again, when the same percentage of voters approved a ballot question legalizing medical marijuana in the commonwealth.

While the passage of the medical marijuana question received most of the attention, marijuana law reformers point to another important victory on last month’s ballot: the success of multiple non-binding public policy questions supporting marijuana legalization. Add those results to the outcomes of earlier ballot questions, say Evans and other activists, and it becomes clear that lawmakers won’t be able to wish away the issue much longer.

Public policy questions are not legally binding but rather serve as vehicles for voters to voice their opinions on particular issues to their elected representatives. To get a PPQ on the ballot, interested parties must collect voter signatures legislative district by district, a requirement that means that the groups pushing the questions typically target just a few districts each election cycle.

In the case of marijuana reform, over the past 12 years, activists have placed 69 PPQs related to legalization, decriminalization and medical use on various district ballots, according to the Drug Policy Forum of Massachusetts, which worked on many of those questions. All have passed.

This year, legalization questions appeared on the ballot in six districts, covering a total of 44 communities. In three of those districts, voters weighed in on the proposal outlined in Evans’ bills: allowing the state to regulate and tax marijuana as it does alcohol. In the other three, voters were asked if they support a “resolution calling upon Congress to repeal the federal prohibition of marijuana so that states may regulate it as they choose.” Only one of those six districts was in Western Mass.: the 2nd Berkshire district, which, following recent redistricting, will now comprise 16 communities in Franklin and Berkshire counties, including Greenfield, Bernardston, Charlemont, Colrain and Northfield. It passed handily there, with 72 percent of voters saying they’d like their state representative, Democrat Paul Mark, to support the taxation and regulation of marijuana.

“That’s clearly what the will of the voters in my district is, so if it comes up for a vote, I will certainly vote for it,” Mark said last week.

Mark, who sits on the Joint Committee on Mental Health and Substance Abuse, had several theories to explain why his constituents support the idea so strongly: perhaps, given the rural nature of the area, some see an economic opportunity in growing legalized marijuana. Voters might like that the idea would generate new tax revenue. In addition, he said, voters in his district are well educated. “Maybe,” he says, “people see this is something that doesn’t come with the problems of some things that are already legal,” like alcohol and prescription drugs that are abused.

The PPQs passed in the other five districts where they appeared as well, by majorities ranging from 54 percent to 74 percent. Considered alongside the historic votes in Washington and Colorado, Massachusetts’ election results indicate “coast-to-coast support for the regulation and taxation of marijuana,” the DPFM said in a post-Election Day statement. “Support for marijuana legalization has reached the tipping point of electoral viability.”

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It’s about time, say drug policy reformers, who argue that the government “war on drugs” has, quite simply, failed. Marijuana use, in particular, is on the rise; a recent survey by the federal government found that 6.9 percent of Americans reported smoking pot in 2010, up from 5.8 percent on 2007.

And, as was the case with alcohol prohibition, anti-drug laws have allowed a dangerous underground drug market to flourish, critics say. Jack Cole, a retired narcotics officer who now heads the Medford-based Law Enforcement Against Prohibition, points to the role the passage of the 21st amendment played in reducing crime: “The next morning Al Capone was out of business,” Cole said in a press release on the PPQ results. “And we can do more to limit expansion and violence of drug cartels by legalization of marijuana than we could ever do with a war on drugs.”

The 2008 decriminalization ballot question passed in part thanks to arguments that arresting and prosecuting people for having a few joints was a waste of taxpayer money and law enforcement resources. According to Harvard economist Jeffrey Miron, legalizing pot would save, nationally, $7.7 billion now spent on enforcing its prohibition, and could generate $6 billion in new tax revenue.

Along the way, illegal drug dealers would be put out of business. “You’re taking these funds out of the hands of the most dangerous [dealers],” said Bill Downing, president of the Mass. Cannabis Reform Coalition. “Not only are you funding schools, you’re defunding assholes. It’s win-win.”

Evans, the Northampton attorney, brought his first tax-and-regulate bill to the Legislature in 1981, under a provision that allows citizens to file bills without a legislative sponsor. Opponents showed up in force at a committee hearing, and lawmakers quickly sent Evans and his bill packing. He brought the bill back to lawmakers in 2009 and 2011; both times, it went nowhere.

But the most recent effort did enjoy one important, if symbolic, distinction: it had a legislative sponsor, state Rep. Ellen Story, a Democrat from Amherst. (She was joined by three co-sponsors, all from Eastern Mass.) And, Story told the Advocate, she intends to file the bill again in the new legislative session that starts in January. Story said she has concerns about marijuana use; she pointed, for instance, to a recently released long-term study from New Zealand that found that people who smoked regularly as teens suffered a loss in IQ points over the years. Nonetheless, she said, she’ll file the bill because 70 percent of voters in her 3rd Hampshire district asked her to in a 2010 public policy question.

Story doesn’t expect many of her colleagues to join her as co-sponsors, even those who privately tell her they agree with the effort, she added. “People are nervous about this. If you’re a legislator, you don’t want to be seen as soft on drugs.”

Story would like to see the federal government recategorize marijuana, which is classified under the Controlled Substance Act as a “class one” drug, considered to have a high potential for abuse and no medical value. (That categorization puts pot in the same category as heroin and LSD, and subjects it to stricter regulations than cocaine and methamphetamines, both of which are “class two” drugs.) Marijuana’s class one designation has led to tensions between the U.S. Justice Department and states that have legalized medical marijuana (see “What I Saw With My Son,” Oct. 11, 2012, http://www.valleyadvocate.com). It’s also prevented scientists from conducting studies of the plant’s effects; Lyle Craker, a UMass Amherst professor, has spent more than a decade battling for permission to study the potential health benefits of marijuana.

“That’s the first thing that should happen, I think,” Story said. “If we could have some reliable, accurate research about this, then it might take some of the mystery away.” But for now, many legislators consider marijuana reform a joke. “I get teased about this,” Story said; carrying a new plant to her Statehouse office one day, she was stopped repeatedly by other lawmakers and staffers who asked, “Oh, Ellen, is that marijuana?” Supporting reform, Story said, “is seen as being irresponsible and spacey. It’s just not respectable.”

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But Terry Franklin, a long-time marijuana reform activist from Amherst, believes that’s changing. He points to Gary Johnson, the former New Mexico governor who ran this year as the Libertarian presidential candidate on a pro-legalization platform and won 1.1 million votes, more than any of his party’s previous presidential candidate had garnered. (The Green Party’s presidential candidate, Massachusetts resident Jill Stein, also supported marijuana legalization; she received about 400,000 votes.)

Still, reform advocates agree that if legalization becomes a reality in Massachusetts, it’s voters, not lawmakers, who will make it happen, via a binding ballot initiative, likely in 2014 or 2016. In the meantime, they’ll keep an eye on the experiences of Colorado and Washington, whose new laws legalizing pot run in direct conflict to federal law that still deems it illegal.

It remains to be seen how the federal government will address that conflict: Will it sue to stop the state laws? Step up its anti-marijuana enforcement? Or step back and let the states make their own policies, as it has, to some degree, with medical marijuana? (In 2009, the Justice Department said it would not prosecute medical-marijuana dispensaries that abide by state regulations, in order to “[make] efficient and rational use of its limited investigative and prosecutorial resources.” Federal agents have cracked down on dispensaries they maintain violate state laws, though, most notably in California.) “It’s clear to me that the preponderance of voters are behind the repeal of marijuana prohibition. What’s standing in the way is the feds,” Evans said. “I anticipate that we’re going to go into a period of confusion over the next year or so.” Downing believes the federal government ultimately won’t prevent states from legalizing marijuana, especially as more and more states move in that direction. “The feds can’t stop it—they’ve got more trouble than they can handle already,” he said.

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A legalization ballot question will, undoubtedly, face organized opposition from some law enforcement professionals as well as anti-drug groups, which also fought this year’s Question 3, the medical marijuana question. During the campaign season, those opponents warned that Question 3 was actually part of a “back-door” strategy for full legalization. “The ballot question is not about compassion. It’s not about medical marijuana. It’s really about the legalization of marijuana, really, for anyone, for any reason,” Kevin Sabet, a former White House drug adviser and spokesman for the No-on-3 group, told the Advocate last summer.

The committee behind Question 3 denied that charge, and, indeed, presumably many of its supporters, particularly patients and their caregivers, were motivated solely by the medical argument. Still, others in the reform movement acknowledge that the medical marijuana battle was part of a larger war against prohibition. “I’ve always thought the other side isn’t totally stupid,” said Franklin, who was not involved in the Question 3 campaign. “They always thought it was a step to legalization, and I’ve always thought it was a step to legalization.”

Even with stepped-up opposition, Downing believes that, based on the PPQ results, a legalization ballot question would pass. Those PPQ results, he added, are likely to catch the attention of the kind of wealthy national donors who’ve bankrolled similar efforts. That list includes investor George Soros, who’s financed numerous left-leaning causes, and Peter Lewis, the Progressive Insurance executive from Ohio who’s donated tens of millions to marijuana reform campaigns in multiple states, including the $1 million he gave in support of Massachusetts’ Question 3. “If the bigwigs with the big money are paying attention and are looking for a good target, Massachusetts is certainly presenting itself,” Downing said.

That strategy—well-heeled people pouring cash into ballot question efforts in other states—is controversial, to say the least. “Essentially, this ballot is being bought by an out-of-state deep pocket,” Heidi Heilman, a leader of the campaign against Question 3, told the Advocate before the election. And it wasn’t just Question 3 opponents who bristled; a spokeswoman for non-partisan Common Cause also spoke out against big-money funding of ballot questions, telling reporters, “You are not supposed to be able to buy a [ballot campaign]. Democracy should not be for sale to the highest bidder.” Downing calls donors like Lewis and Soros “multimillionaires and billionaires who just want to see the right thing happen.” But before long, he predicted, their role will be moot; once marijuana is regulated and taxed, a new industry will develop, with its own financial interests—starting with an interest in seeing more states legalize pot.

Indeed, there’s already a National Marijuana Business Conference, an annual trade show that met last month in Colorado and next year will convene in Washington. “It was not a gathering of political activists,” said Evans, who attended the conference; instead, there were various professionals interested in the medical marijuana industry, from software developers pitching inventory and sales systems to graphic designers selling their skills in packaging to attorneys, Evans included, interested in working with medical marijuana dispensaries. “There will be many, many new jobs when the cannabis industry is liberated,” he said.

In the end, it’s financial interests—for better or for worse—that may give the marijuana legalization effort the boost it needs to become a widespread reality. As Downing puts it: “Now we’re talking about greed and capitalism and what runs America.”•